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Based on the foregoing testimonial! evidence, it is indisputable that Complainant has met his burden of showing that he was subjected to hostile work environment harassment based upon his race, color, gender or prior EEO activity, that it affected a term or condition of employment, and/or had the purpose or effect of unreasonably interfering with his work environment and/or creating an intimidating, hostile, or offensive work environment.
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Andrew Schwartz4525 Wilshire Blvd., Suite 201Los Angeles, CA 90010Tel: (323) 932-1746Fax. (323) 932-1873
Attorney for Complainant
OLIVER MITCHELL
Complainant
LOS ANGELES DISTRICT
) EEOC NO. 480-2010-00106X) Agency No. 200P-0691-2009142570
)) COMPLAINANT'S RESPONSE TO) AGENCY',S MOTTON FOR A DEC|S|ON) wrTHouT A HEARTNG
UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY GOMMISSION
V.
ERIC K. SHINSEKI, Secretary )Department of Veterans Affairs )
)Agency
COMES NOW the COMPLAINANT, Oliver Mitchell who respectfully requests that the
Agency's motion for a decision without a hearing be denied since there are material facts
of this matter that are genuinely in dispute.I. ACCEPTED CLAIMS
The Office of Resolution Management accepted the following claims of discrimination:
Claim A - Disparate Treatment
Whether Complainant was heated differently on the bases of Race
(African-American), Color (Black), Gender (Male), and/or Reprisal for prior EEO activity as
evidenced by:
Event 1: On June 8, 2009, he was detailed to unclassified duties in Primary and
Ambulatory Care, not-to-exceed 60-days, pending completion of an Administrative
lnvestigation (Fact-Finding). (Same as Claim B, Event 29)
Event 2: On June 5, 2009, effective at noon, he was placed on Authorized Absence.
(Same as Claim B, Event 30)
Claim B - Hostile Work Environment
Whether on the bases of Race (African-American), Color (Black), Gender (Male),
and/or Reprisal for prior EEo activity, complainant was subjected to a hostile work
environment (non-sexual) as evidenced by:
Event 1: February 2008, Michael Clark, MRI Technologist, made a bet with another
employee that he could get rid of Complainant, and threatened him by saying he should
take him outside and "whoop his ass."
Event 2: February 3,2008 through June 1,2008, he was not allowed to take his daily
lunch breaks because his supervisor, Hannah Nishimoto, Administrative Officer, allowed
his co-worker, Bertha Villanueva, to be out of the office for up to 4 hours each day.
Event 3: February 2008 to June 2008, Ms. Nishimoto daily denied his requests to change
his tour of duty.
Event 4: February 2008 to June 2008, Ms. Nishimoto daily denied his requests to work
overtime or earn Compensatory Time.
Event 5: May 5, 2008, Ms. Nishimoto told him that he should seek a reassignment to
another Service and that he would find more opportunities in private industry; and
subsequently, she sent him emails about other job training.
Event 6: May 5, 2008, Ms. Nishimoto denied his request to leave 15 minutes early in lieu
of having missed his break; and then subjected him to sarcastic remarks.
Event 7: May 6, 2008, Ms. Nishimoto harassed him by sending an email message
notifying him of a meeting that was scheduled for the following day.
Event 8: May 2008, Ms. Nishimoto pulled him out of a Timekeeper training class which
she had previously approved him to attend.
Event 9: December 6, 2008, Ms. Nishimoto told him, "lf you want to get any where in the
VA, you have to kiss my ass."
2
Event 10: January 9, 2009, Ms. Nishimoto failed to take any action when he reported that
Mr. clark threatened him; saying that he had a gun in his car and that he wanted him to go
outside so he could shoot him.
Event 11: January 2009, Ms. Nishimoto denied his request to attend Planetree training.
Event 12: January 2009, Ms. Nishimoto denied his request to attend systems Redesign
Training.
Event 13: February 9,2009, Ms. Nishimoto failed to take any action when he reported
that Mr. Clark again threatened him.
Event 14: March 24,2009, Dr. El-saden. service chief, made a derogatory statement
about "techs" becoming a little hostile; which he believed was directed at him. During the
same meeting, she said that his (complainant's) issues were addressed so she would not
take any action, and that Herlinda Valdovinos was detailed to the Department because she
is a "fresh face" and a woman can do the job better.
Event 15: April 6, 2009, Ms. Nishimoto berated him and his co-worker, Lorenzo Gaines,
for not providing coverage for the front desk.
Event 16: April 16, 2009, he overheard Ms. Nishimoto say to Ms. valdovinos that she
should not tell him that she was going to Timekeeper class, and she also stated, ,,you
know how he is."
Event 17: Apri|21,2009, Ms. Nishimoto berated him about his "hostile work environment,,
and stated, "l need to talk to you about your little situation, it would be in your best interest";
which he perceived as a threat.
Event 18: April 27, 2009, Dr. El-saden held a staff meeting in which she singled him out
and blamed him for the clinic's failure and problems, including saying that he has made the
clinic inaccessible, and that he should let "Herlinda do what she was brought over to do."
3
\-
Event 19: May7,2009, Mr. clark again threatened him; and although he reported it, to
date, management has not taken any action.
Event 20: May 8, 2009, Dr. El-Saden called to inform him that she had a solution to their
problem; which was to move him to a closet in Bldg. 500 away from everyone else. she
told him that if this did not work, she would put him in the area with pAX, as she did not
know what else to do, and that it is easier to get rid of a scheduler than to lose a tech.
Event 21: May 11,2009, Dr. El-saden berated him about his lunch schedule and not
providing coverage.
Evenl22: May 13, 2009, after he suggested that they rotate clinic duties, Ms. Valdovinos
said, "l won't work here. l'm not a slave and you don,t tell me what to do.,,; then Ms.
Nishimoto said that she was in agreement with him; however, because Ms. valdovinos
objected that they should modify the rotation.
Event 23: May 26,2009, he became aware management had decided to modify their
previous agreement to move two desks up front, and alternate duties between him and Ms.
Valdovinos.
Event 24: May 26, 2009, he became aware that Ms. Nishimoto had not been truthful
about receiving permission to rotate their duties from the union.
Event 25: May 28, 2009, he overheard Ms. Nishimoto tell Mr. Lorenzo Gaines that he
should take a detour from him, not get stereotyped with him, and that ,,He has his own
skeletons in his past, if you know what I mean." she cautioned Mr. Gaines to think about
his kids, and told him that as a result of complainant being EEo driven, she had to ask
Human Resources to prepare a request to rotate them.
Event 26: May 28, 2009, when she gave him his Mid-year performance Review Ms.
Nishimoto stated, "You should take the Medical coder class offered at the VA because
outside hospitals are paying big bucks for coders.,,
4
Event 27: June 4, 2009, Dr. El-Saden berated him about an overbooked Research
patient.
Event 28: June 5, 2009, Dr. El-Saden denied his request to have a union representative
present before she proceeded with their meeting.
Event 29: June 5, 2009, he received notification that effective June 8, 2009, he was being
detailed to unclassified duties, not-to-exceed 60 days, in Primary and Ambulatory Care
pending completion of an investigation into allegations of inappropriate conduct. (Same
as Claim A, Event 1)
Event 30: June 5, 2009, he received notification that, effective at noon, he was placed on
Authorized Absence. (Same as Claim A, Event 2)
II. STATEMENT OF UNDISPUTED FACTS
1. Complainant is an African American (race), black (color), male (gender) who filed a prior
EEO complaint against Nurse Manager Katherine Woo (from another department) in 2005.
lF, Tab B-1 , pp. 10, 1 1 and Tab C-2.
2. Complainant was initially hired by the VA in 2004. lF,Tab B-1, p. 12.
3. Complainant worked at the VA Greater Los Angeles Healthcare System from February
2008 to June 2009 as a GS-s, Patient Services Assistant in the Imaging/X-ray Department.
lF, Tab B-1, p. 13.
4. Complainant's continuing position description (as a Patient Services Assistant) states
that the incumbent will provide various Lead Patient Services Assistant duties in all
assigned lmaging Program areas at three Southern California Systems of Clinic's facilities
(WLA, Sepulveda OPC and Los Angeles OPC). lF, Tab C-23, p. 909.
5. While working in the lmaging Department, Hannah Nishimoto (RMO1 - Asian, white,
female) was Complainant's supervisor and Dr. Suzie El-Saden (RMO2- Arab American,
white, female) was the Service Chief. lF, Tab B-1, pp. 14-17.
5
6. Complainant has occupied his current position as a GS-5, Patient Services Assistant in
Primary and Ambulatory Care, since June 2009. lF, Tab B-1 , p. 13.
7. currently, Desiree Hill (African American, black female) and cad Shannon (African
American, black, male) are Complainant's supervisors. lF, Tab B-1, pp. 14-16.
8. None of the foregoing supervisors had knowledge of complainant's prior EEo complaint
in 2005 (which took place in a different department and involved different supervisors). lF,
Tab B-1, p. 16.
9. complainant believes his managers have heated him unfairly because of his race
(African American), color (black), gender (male) and prior EEo activity (complaint filed
April14,2009). lF, Tab B-1.
10. one of complainant's coworkers is Lorenzo Gaines, (African American, black, male, no
EEo activity) who works as a Patient services Assistant in the lmaging Department and
shared supervisor Nishimoto (RMO1) with Complainant. lF, Tab B-2, pp. 9, 10.
11. Gaines believed the complainant was treated differenily due to his gender by his
supervisor, Ms. Nishimoto. lF, Tab B-2, pp. 15.
12. Gaines believed that the Complainant was subjected to a hostile work environment due
to his gender. lF, Tab B-2, pp. 15.
13. Gaines stated that he was aware that Bertha villanueva (Hispanic, white, female, no
EEo activity), a coworker of the complainant, was often away from the department where
they both worked and he would see her walking around the main hospital . lF, Tab B-2,
pp. 20.
14. Gaines stated that the Complainant was pulled from the timekeeper training class in
May, 2008. Ms. Nishimoto was the only one that could pull him from the class. lF, Tab B-2,
pp. 26.
6
15. ln regard to Claims A-1 and B-29, Complainant alleged that on June 8, 2009, he was
detailed by Dr. El-Saden (RMO2) from the lmaging Department to the primary and
Ambulatory Care Department due to inappropriate conduct. lF, Tab B-1 , pp. 16, 17.
16. Complainant believed that his being detailed was disciplinary in nature, because it is
stated that he was detailed for inappropriate conduct. The VA Handbook 5021, states if
someone is detailed for inappropriate conduct its considered a disciplinary action. lF, Tab
B-2, pp. 15..
17. Randolph Jones, chief rechnologist for lmaging services/Radiology is supervised by
Dr. El-Saden, stated that he believed that the Complainant was being detailed as a result
of a disciplinary action. lF, Tab B-7, pp. 13.
18. ln regard to Claims A-2 and B-30, Complainant alleges that on June 5, 2009, he was
placed on authorized absence by Dr. El-saden in conjunction with the detail. lF, Tab B-1,
p.26.
19. complainant stated that he was placed on authorized absence for 4.5 hours on Friday
June 5, 2009, before he started his new detail on Monday June 8, 2009. lF, Tab B-1, p. 26.
20. complainant was placed on authorized leave on June 5, 200g, pending his detail on
June 8,2009. lF, Tab C-7, p.846.
21. Authorized absence meant that complainant was in an off-duty status, but was paid
and not charged any annual or sick leave during that time. lF, Tab C-7, p. 846.
22. ln reference to Glaim B-1, complainant alleges that in February 2008, Michael clark,
MRI rechnologist, made a bet with another employee that he could get rid of complainant,
and threatened him by saying he should take him outside and "whoop his ass.,, lF, Tab
B-1, pp. 29, 30.
22. complainant alleged that he reported this to Randy Jones (RMo3 and chief rech for
the Department), and that Mr. Jones (RMo3) spoke to both him and Mr. clark separately
7
and together, but decided to weigh the matter out and see what happens. lF, Tab B-1, p.
32, 33.
23. Jones stated that Clark stated that he had an argument with the Complainant regarding
the scheduling of patients and that he told him that, "we could step outside and do what
men do. Either he whoop my ass or I whip his ass." lF, Tab B-7, pp.21-22.
25. ln reference to Claim B-2, Complainant alleges that from February 3, 20OB - June 1,
2008, he could not take daily lunch breaks because Ms. Nishimoto allowed co-worker
Bertha Villanueva to be out ofthe office for up to four hours each day. lF, Tab B-1, p, 33.
26. ln regard to Claim B-3, Complainant alleges that from February 2008 to June 2008,
Ms. Nishimoto denied his request for a change in his tour of duty. lF, Tab B-1, p.37.
27. No one else requested a change in their tour of duty. lF, Tab B-1 , p. 39.
28. ln reference to Glaim 84, Complainant alleges that from February 2008 to June 200g,
Ms. Nishimoto denied his request to work overtime and offered him compensatory time in
lieu of overtime. lF, Tab B-1, p. 40.
29. Documentary evidence on file indicates that Complainant accrued 3.75 overtime hours
on February 26,2008 and one overtime houron June '17,2008. lF, Tab C-16, pp. 3,4.
30. Documentary evidence on file also indicates that Complainant took/earned 32 hours of
compensatorytimefrom February21,2008, to July 17,2008. lF, Tab C-16, p. 1.
31. ln regard to Claim B-5, Complainant alleges that after inquiring about a "lead" position
in the service, on May 5, 2008, Ms. Nishimoto told him that he should seek reassignment
to another service, that he would find more opportunities in private industry, and later sent
him emails about other job training. lF, Tab B-1, p. 42.
32. Complainant alleges that Ms. Nishimoto said the same thing about seeking upward
mobility in other services to another employee named Herlinda Valdovinos (Race:
Hispanic, Color: Brown, Gender: Female, EEO status: No prior EEO activity). lF, Tab
8
B-1, p. 42.
33. Complainant explained that Ms. Nishimoto sent him emails to the effect that because
the service had not yet been given permission to hire a lead, it might be in his best interest
to gather experience in different services or agencies. IF, Tab B-1 , p. 43.
34. Complainant stated that Ms. Nishimoto told him not to limit his possibilities and
explained that certain agencies have better upward mobility programs than the VA. lF, Tab
B-1, p. 43.
35. Nishimoto told the Complainant that if he wanted to move forward, he would have to go
probably out of the Service. lF, Tab B-8, pp.26,27.
36. Mr. Gaines stated that Nishimoto made this comment to the Complainant in his
presence, but did not make this comment to him. Gaines thought this comment was
strange, because the VA usually promotes growth from within the agency. lF, tab B-2, p.
51-52.
37. ln regard to Claim 8-6, Complainant alleges that on May 5, 2008, Ms. Nishimoto
denied his request to leave 15 minutes early in lieu of having missed his break, and then
subjected him to sarcastic remarks. lF, Tab B-1, p. 44.
38. ln regard to Claim B-7, Complainant alleges that alleges that on May 6, 2008, Ms.
Nishimoto harassed him by sending an email message notifying him of a meeting
scheduled the following day. lF, Tab B-1, p. 48
39. Complainant confirmed that the foregoing email was also sent to other comparator
employees, including Lorenzo Gaines and Bertha Villanueva. lF, Tab B-1, p. 48.
40. Gaines explained that the employees are now given notice of a meeting "a month in
advanc€" but in 2008, "everybody was scrambling trying to get the MRI scheduled; so it
could have been a day notice, it could have been a couple of days notice." IF, Tab B-2, pp.
25,26.
I
41. ln regard to claim B-8, complainant alleges that in May 2009, Ms. Nishimoto pulled
him out of a timekeeper kaining class that she had previously approved him to attend. lF,
Tab B-1 , pp.50,51.
42. complainant stated that on May 12,2008, Ms. Nishimoto had approved him to attend a
class on June 16, 2008, but later retracted the approval. IF, Tab B-1, p. 51.
43. Mr. Gaines stated that the complainant was pulled from the class and the only one
who could have done it, was Nishimoto. He had previously attended the class. IF, Tab B-2,
pp.26,27.
44. ln regard to claim B-9, complainant alleges that on December 6, 2008, Ms. Nishimoto
told him "if you want to get anywhere in the VA you have to kiss my ass.,, lF, Tab B-1, p.
53.
45. Gaines testified that the Complainant told him that Nishimoto told him that if he wanted
to get anywhere in the vA he had to kiss my ass, and that he couldn't believe that a
supervisor would say such a thing. lF, Tab B-2, pp.2l .
46. ln reference to Claim B-10, Complainant alleges that on January 9, 2009, Ms.
Nishimoto failed to take any action when complainant reported that Michael clark
threatened him, saying that he had a gun in his car and wanted to go outside so he could
shoot him. lF, Tab B-1, p. 54.
47. Complainant explained that as soon as he alerted Ms. Nishimoto to Mr. Clark's threat,
she wrote an immediate email asking Randy Jones and Barbara Biddle to discuss this
incident with their technicians, and stating that "the schedulers are doing what we ask them
to do." IF, Tab B-1, p. 55 and Tab C-10.
48. complainant claimed that Ms. Nishimoto treated Mr. clark more fairly because "he's
been there for almost 30 something years, so I think she shows him that respect because
he's been there a long time." lF, Tab B-1, p. 57.
10
49. Randy Jones stated that Complainant did not inform him that Witness Clark threatened
him and said he had a gun in his car, and he did not know if Complainant contacted B. B.,
who was identified as Witness Clark's immediate supervisor; Mr. Jones noted that he only
found out about this alleged incident "after the fact.' lF, Tab B-7, pp.25-27.
50. Ms. Nishimoto testified that Complainant did not come to her about this allegation but
went to Mr. Jones. She added: "lf he had come to me with that kind of a statement, I would
have taken action. If Mr. Clark has a gun, then I need to call the VA Police because guns
on the station are shictly forbidden and illegal, and they would have had to investigate. And
I have no investigation from any VA Police for that." lF, Tab B-8, p. 33.
51. Gaines testified that Mr. Clark came into his office and told him that he did say to the
Complainant that he had a gun in his car and that he was going to take them out and
actually shoot him. lF, Tab B-2, pp. 28.
52. Gaines was a former VA police officer. lF, Tab B-2, pp. 29.
53. Gaines testified that VA employees often don't realize that they can contact the VA
police, instead they believe they are supposed to contact their supervisor. lF, Tab B-2, pp.
29.
54. Gaines testified that the Complainant told him that he had contacted his supervisors
about the threat and not the VA police, as he believed that his supervisors would take care
ofthings. lF, Tab B-2, pp.29,30.
55. Gaines testified that the VA police should have checked to see if Clark had a gun, they
could have run the computer to see if he had a gun. Gaines also testified that Clark did not
say if he did or did not have a gun. lF, Tab B-2, pp. 30.
56. ln regard to Glaim B-11, Complainant alleges that in January 2009, Ms. Nishimoto
denied his request to attend Planetree training. lF, Tab B-1, p. 58.
57. Complainant noted that it was actually Ms. Nishimoto's idea that he volunteer for
11
Planetree training. lF, Tab B-1. p. 58.
58. Complainant was not aware that anyone else (beside Mr. Gaines and himself) applied
for the training and was not aware that anyone actually attended the training. lF, B-1 , p.
59.
59. Gaines stated that Ms. Nishimoto denied both him and Complainant attendance at the
Planetree training. lF, Tab B-2, p. 31.
60. The agency in undisputed statement 92, misquoted what Gaines testified to. When
asked why he was denied attendance at the Planetree training, stated "l don't know if it
was because of the coverage over in the main hospital, she really wouldn't go into detail. I
mean, the coverage over near building 507, as far as scheduling, because I believe that
training would have taken us away for approximately a week. He did not say that Nishimoto
said this. lF, Tab B-2, pp. 31.
61. Gaines did not think that he and Complainant were denied Planetree training on the
basis of race, color, or gender. lF, Tab B-2, pp. 31, 32.
62. Valdovinos testified that she requested to attend the Planetree Train-the-Trainer
training and was scheduled to attend it. lF, Tab B-3, pp. 19, 20.
63. ln regard to Claim B-12, Complainant alleges that in January 2009, Ms. Nishimoto
denied his request to attend Systems Redesign training. lF, Tab B-1 , p. 59.
64. Complainant noted that it was actually Ms. Nishimoto's idea that he volunteer for
Systems Redesign training, but that on January 30, 2008, she stated that she was going to
hold off on appointing any coaches. lF, Tab B-1. pp. 59, 60.
65. Complainant did not submit to Ms. Nishimoto an lndividual Development Plan (lDP) as
she had recommended, because he gave her one in December and this took place in
January lF, Tab B-1, p. 60.
66. The Complainant applied for Systems Redsign kaining as she alluded to, but she
12
denied this request. She then said there are opportunities for planetree, so he applied for
that and was also turned down. lF, Tab B-1, p. 60.
67. ln reference to Glaim B-13, Complainant alleges that on February 9, 2009, Ms.
Nishimoto failed to take any action when complainant reported that Mr. clark again
threatened him. lF, Tab B-1, p. 54.
68. complainant indicated that when he reported it to Ms. Nishimoto, she referred it to
Randy Jones, who is the direct supervisor of Mr. clark, and no action was taken. lF Tab
B-1, p. 62.
69. Nishimoto stated that complainant may have complained about clark to her and she
"referred the situation to Mr. Jones, who is the direct supervisor of Mr. clark, so we could
get something resolved because I can't do anything to Mr. Clark." lF, Tab B-8, pp. 39, 40.
70. Gaines testified that regarding the threat that clark made to the complainant in
February, 2009, Nishimoto was going on vacation and had been informed of the threat,
and he believed that she told Randy Jones about the threat, but he did nothing about it. .
lF, Tab B-2, p. 33.
71. Gaines further testified that when a serious threat like this is made (coming from a one
who had been a police officer), the person making the threat is normally removed from the
work station and either put in another section or put on administrative leave until the
investigation has been completed. At no time did he see clark away from his work area. .
lF, Tab B-2, p. 33.
72. Gaines testified that he believed that the complainant might have been a victim of
gender discrimination. He also stated that once the complainant let everyone know he was
going to the EEO, it seemed like they started treating him with a little bit more hostile
attitude, "l started noticing, like, wow, they really started treating him bad" . lF, Tab B-2, p.
46.
13
73. ln reference to Glaim B-14, Complainant alleges that on March 24,2009, Dr. El-Saden
made a derogatory statement about "techs" becoming a little hostile, which Complainant
believes was directed at him. During that same meeting, she said that his issues were
addressed so she would not take any action, and that Herlinda Valdovinos was detailed to
the department because she was a "fresh face" and a woman can do the job better. lF,
Tab B-1, p.62.
74. Complainant stated that during this meeting Dr. El-Saden addressed backlog issues,
number of daily phone call issues, clinic hours issues, scheduling patients issues and
procedures, and that she also noted that she was aware of the issues going on the in the
clinic and was trying to figure out what to do about them. lF, Tab B-1, pp. 63, 64.
75. Gaines testified that El-Seden stated at the meeting that "techs" were becoming a litfle
hostile because of the work. She also stated that Valdovinos was a "fresh face". He
believed that the meaning was that women could do the job better, and that indicted
possible gender discrimination. lF, Tab B-2, p. 35,36.
76. ln regard to Claim B-15, Complainant alleges that on April 6, 2009, Ms. Nishimoto
berated him and co-worker Lorenzo Gaines for not providing coverage for the front desk.
lF, Tab B-1, pp. 65, 66.
77. Complainant stated that Ms. Nishimoto had spoken to Herlinda Valdovinos and
Lorenzo Gaines in the same manner about the same issue. lF, Tab B-1, p. 67.
78. Gaines testified that the impression he had of the conversation was that "as long as I
let the techs know that we were leaving the front desk to go to lunch and they were willing
to cover, then that would be okay, and when we tried to explain it to Ms. Nishimoto, she
said that it was no longer the way.' lF, Tab B-2, p.37.
79. Gaines noted that Ms. Nishimoto told Complainant and him to "take our lunch breaks
separately, as long as the front desk was covered." lF, Tab B-2, p. 37.
14
80. ln regard to Claim B-16, Complainant alleges that on April 16, 2009, he overheard Ms.
Nishimoto say to Ms. Valdovinos that she should not tell him that she was going to
timekeeper class, and she allegedly stated "you know how he is." lF, Tab B-1 , p. 67.
81. Complainant stated that he did not say anything to Ms. Nishimoto or Ms. Valdovinos
about what he allegedly overheard. lF, Tab B-1, p. 68.
82. The Complainant testified that Valdovinos, who was a new hire was allowed to go to
Timekeepertraining and he wasn't. lF, Tab B-1, p. 68.
82. Ms. Nishimoto testified that Ms. Valdovinos attended Timekeeper training in "June or
July orAugust". lF, Tab B-8, p. 43.
83. ln regard to Claim B-17, Complainant alleges that on April 21,2009, Ms. Nishimoto
berated him about his hostile work environment and stated "l need to talk to you about your
little situation, it would be in your best interests," which he perceived as a threat. lF, Tab
B-1, pp. 68, 69.
84. Complainant believed that Ms. Nishimoto was angry because he had filed an EEO
complaint and forthe other basis of discrimination that he had alleged. lF, Tab B-1, p. 70.
85. ln reference to Claim B-18, Complainant alleges that on April 27, 2009, Dr. El-Saden
held a staff meeting in which she singled him out and blamed him for the clinic's failure and
problems, including saying he had made the clinic inaccessible and that he should let
Herlinda Valdovinos "do what she was brought over to do." lF, Tab B-1, p. 70.
86. Gaines testified that he was in this meeting and that it was possible that she made this
statement. lF, Tab B-2, pp. 39.
87. ln regard to Claim B-19, Complainant alleges that on May 7,2009, Mr. Clark again
threatened him, and although he reported it to Randy Jones and, to date management has
not taken any action. lF, Tab B-1, p. 73.
88. The Complainant did contact the VA police and attempt to file a report but was told this
15
was some type of work place harassment and he should contact EEO. lF, Tab B-1 , p. 73.
89. Clark was never spoken to or disciplined by management.
90. ln reference to Claim B-20, Complainant alleges that on May 8, 2009, Dr. El-Saden
called him to inform him that she had a solution to their problem, which was to move him to
a closet in Bldg. 500 away from everyone else. she allegedly told him that if this did not
work, she would put him in the area with PAX, as she did not know what else'to do, and
that it was easier to get rid of a scheduler than lose a tech. lF, Tab B-1 . p. 77.
91. Dr. El-Saden (RMO2) stated that Complainant first agreed to move and she called right
away to get a phone put in "then he called me back and said, 'l don't want to move. He
called me back again and said, 'No, I don't want to move. I didn't do anything wrong., I
said, 'but aren't you scared?' and he goes, 'Well, yes (but) l'm going to stay here. I think
Michael should move."'lF, Tab B-9, pp. 35, 36.
92. Ms. Moore explained that Complainant was detailed because of his own conduct and
his e-mail towards his supervisor, and how he was responding to things. She stated that
he could have been moved to the other desk because, if you're separating employees who
are having a dispute (and) while you're waiting to figure it out, you might normally separate
the person who is allegedly causing the problem; however, sometimes because of patient
care, that's not the most reasonable or efficient thing to do, so the other person might be
moved. lF, Tab B-10, pp. 39,40.
93. ln reference to Claim B-21 , Complainant alleges that on May 11, 2009, Dr. El-Saden
berated him about his lunch schedule and not providing coverage. lF, Tab B-1, p. 80.
94. Gaines explained that when he and Complainant came back from lunch, Dr. El-Saden
"was working the desk (and) asked how come the desk wasn't covered. I actually
explained to her (that) I was under the impression as long as we let the technician know
that we were leaving the front to get a bite to eat, it was okay. We had done that on
16
several occasions when Mr. Clark has said, 'Okay guys, go ahead,'(and) on a couple of
occasions he has actually asked us to bring some food back. She said, 'Okay, if that's the
way you guys have it over here, that's fine. I just want to make sure one way or the other,
the desk is covered."'lF, Tab B-2, pp.4143.
95. Dr. El-Saden sent an email to Complainant on May 11,2009, stating: "Bruce, as I
mentioned earlier today, please refrain from taking breaks and lunch breaks at the same
time as your colleagues so that the front desk and phones in MRI can remain covered
during the day." lF, Tab C-14, p. 871.
96. Complainant replied to the foregoing email by writing to Dr. El-Saden: "l don't recall
anyone complaining about phones, schedules, walk-in's, lunch breaks etc when Bertha
worked here. ls that because you all were busy having Sushi with her during her three hour
lunch visits. Thank you (for the discrimination)." lF, Tab C-14, p. 871.
97. ln regard to Claim B-22, Complainant alleges that on May 13, 2009, after he
suggested that he rotate clinic duties, Ms. Valdovinos said "l won't work here. l'm not a
slave, and you don't tell me what to do." And then Ms. Nishimoto said that she was in
agreement with him; however, because Ms. Valdovinos objected that they should modify
the rotation. lF, Tab B-1, pp. 82, 83.
98. Gaines testified that Valdovinos did not like the idea of working or rotating at the front
desk. lF, TabB-2,pp.44.
ln reference to Claim B-23, Complainant alleges that on May 28,2OOg, he became aware
that management had decided to modify their previous agreement to move two desks up
front and alternate duties between him and Ms. Valdovinos. lF, B-1, pp. 84, 85.
99. Gaines claimed management "originally wanted to move a desk up front for a
volunteer, and the volunteer never showed up, and they had another volunteer come in
twice a week. When that person stopped showing up, that's when they wanted to move
17
Ms. Valdovinos up front with Mr. Mitchell (and) they actually put a smaller desk adjacent to
the printer but she never moved up front." lF, Tab B-2, pp. 44,45.
100. Gaines testified he believed it possible Complainant was treated differently or
subjected to a hostile work environment on the basis of his gender and was retaliated
against for filing an EEO complaint. lF, Tab B-2, pp. 46.
101. ln regard to Claim B-24, Complainant alleges that on May 26,2009, he became
aware that Ms. Nishimoto had not been truthful about receiving permission from the union
to rotate his duties. lF, Tab B-1 , p. 88.
102. ln reference to Glaim B-25, Complainant alleges that on May 28, 2009, he overheard
Ms. Nishimoto tell Gaines that he should take a detour from Complainant, not get
stereotyped with him, and that "he has his own skeletons in the past, if you know what I
mean." She cautioned Mr. Gaines to think about his kids and told him that as a result of
Complainant being EEO driven, she had asked Human Resources to prepare a request to
rotate him. lF, Tab B-1, p.88.
103. Gaines testified that he had this conversation with Nishimoto. lF, Tab B-2, p.48.
104. ln regard to Claim 8-26, Complainant alleges that on May 28,2009, when she gave
Complainant his mid-year review, Ms. Nishimoto stated "You should take the Medical
Coder class offered at the VA because outside hospitals are paying big bucks for coders."
lF, Tab B-1, p.91.
105. Complainant indicated that Ms. Nishimoto made the same comment to Valdovinos. lF,
Tab B-1, p. 91.
106. Gaines was in Nishimoto's office when she made this comment to the Complainant
and not to him. He thought it was strange that she would say this to the Complainant. lF,
Tab B-2, p. 51,52.
107. ln reference to Claim B-27, Complainant alleges that on June 4,2009, Dr. El-Saden
18
berated him about an overbooked research patient. lF, Tab B-1, p. 92.
108. ln regard to claim B-28, complainant alleges that on June 5,2009, Dr. El-Saden
denied his request for a union rep present before she proceeded with the meeting. lF.
Tab B-1, p.95.
109. Dr. El-Saden (RMO2) testified that she was told by Human Resources that she did not
"need a Union representative to give (complainant) a letter of detail." lF, Tab B-9, pp. 44,
45.
110. Dr. El-saden (RMo2) explained that she did not consider the detail a disciplinary
action and claimed she "needed to figure out what was going on and why Herlinda felt so
threatened, and why she was sending e-mails saying management hasn't done anything
about this. Hannah was out of town and I was left with the job.,, lF, Tab B-9, pp. 44, 45.
111. Gaines testified that the Complainant was the victim of gender discrimination by
Nishimoto and Dr. El-Seden and subjected to a hostile work environment in reprisal for his
EEO activity. lF, Tab B-2 p. 54.
112. The complainant filed a second EEo complaint with the agency on April 12, zoog. lF
Mitchell Response to Heuman, July 29, 2009.
I. APPLICABLE LAW
A. Entry of Decision Without A Hearing
The issuance of a decision without a hearj_ng is
warranted if no genuine issues of material fact exist
when the evi-dence is viewed in the Iight most favorable
to the complainant. 29 C"F.R. S1614.L09(q); F.R.C.p.
56; see Anderson v. Liberty Lobby, rnc., 41'l u.s. 242,
255, 106 S.Ct. 2505, 2573-14 (1986); Bang v. Runyon,
EEoc Appeal No. 01961575 (March 26, 1998) at 2. rf
19
a party oppos ing a surTlmary I udgment cannot ',ma ke a
showi-ng sufficient to est.abl-ish the existence of an
element essential to that party's case and on which
that party will bear the burden of proof at trial, the
entry of summary j udgment j_s appropriat e. " Celotex
Corp. v. Catrett, 4'7'7 U.S. 3!1 , 323, L06 S.Ct. 2548
(1e86).
The party oppos ing a mot ion f or sufirmary j udgment
may not simply rest upon allegations in the complaint
but must set forth significantly probative evidence
as to material facts claimed to be disputed requiring
resolution by the fact-finder Simple assertions
invorving subj ective belief or speculation as to
motive, intent, or pretext are insufficient to create
a genuine issue of material fact and thereby defeat
the agency' s sunrmary j udgment motion. Matsushita Elec.
Indus. Co. v Zenith Radio Corp., 4'/5 U.S. 51 4 (198G);
see aLso Pj-zarro v. Department of Commerce/ EEOC Appeal
No. 01942406 (1995) cit.ing Cel-otex Corp. I supra. Lay
opinionr ox generalized testimony as to an emptoyeers
subj ective belief that discrimination occurred, is
insufficient to make a triable i-ssue in the face of
proof showing an adequate nondiscriminatory reason for
the employer's action. cassino v. Reichotd chemicars,
Inc., BLl F.2d 1338, 1345 (9th Cir. 1981), cert. denied,
484 u. s . 7041 (1988 ) . Purely concrusory al-l-egations
of discrimination, with no concrete, relevant
20
particulars, will not bar surnmary j udgment. Forsberg
v. Pac j-f ic Northwest Bel-1 Telephone Co. , B 4 0 F .2d 1409 ,
1415 (9th Cir. 1986) The complainant also cannot
withstand summary disposition simply by expressing an
intent to challenge the credibility of the agency, s
witnesses on cross-examination. Lindahl v. Air France,
930 F.2d 1434 ( 9th Cir . 7991 ) .
B. Tit1e VfI Disparate Treatment
Section 171 of Title VIT of the Civil_ Rights Act
of 7964, as amended by the Equal Employment opportunity
Act of ]_91 2 ( "Title VII" ) t prohibits discrimination
in federal employment based on race, coIor, religlon,
gender, and national origin. 42 U.S.C. 52000e-16.
To prevail in a disparate treatment case/ proof
of discriminatory motive is critical. rnternational
Bro. of Teamsters v. U. S , 437 U. S . 324, 335 n. 15
(7991 ) . Direct evidence of discrj-minatory intent is
sufficient to establish a prima facie case of disparate
treatment; however, where the prima facie case is based
on indirect or circumstantial evidence, the complainant
bears the initial burden of showing that ( 1 ) he or she
is a member of a protected crass; (2) was subject to
an adverse employment action; and (3) si_mj_larly
situated employees outsj-de complainant's protected
cl-ass were treated more
21
favorably in Iike
circumstances. Behar v. United States postal Service,
EEOC Request No. 05940181 (June 2, 1995); Gay v.
waiters' and Dairy Lunchmen's union, 694 E.2d 531, 531
(9tn Cir . LgB2) ; see al-so St. Mary' s Honor Ctr. v. Hicks,
509 u.s. 502, 507 (1993) (reaffirming and crarifying
McDonnell Douglas Corp. v. Green , 4l\ U. S . j 92, BO2
(7e7 3)) .
rf the complaj-nant succeeds in estabrishing a
prima facie case of disparate treatment, there is a
presumpt.ion that the Agency unlawfully discriminated
against the comprainant. Te@of communi_qy
Affairs v. Burdine 450 U. S . 248, 254 (1981) That
presumption shifts the burden of production to the
Agency to rebut the prima facie case by producing
evidence that the employment decision was made for
regitimate, non-discriminatory reasons . rd. should
the Agency produce such evidence, the complainant must
then demonstrate that the proffered reason j_s a pretext
for a discriminatory motive. Id. at 256.
rn order to state a priqta facie case of reprisar,
the complainant must show that ( 1 ) he or she engaged
in prior EEo activity, (2) a relevant agency official
was aware of the protected activity, ( 3 ) there was a
subsequent adverse agency action, and (4) the agency
action closely followed the protected activity such
that a retaliatory motive can be inferred. Barnes v.
22
Small, 840 E.2d 9'72, 91 6 (D.C Cir. 19BB) ; YarLzoff
Thomas, 809 E.2d 7317, 1,31 6 (gtn cir. 1981 ); Hicks
v. United States Postal Servi ce , EEOC Request No
0593A11 4 (June 23, L994) If the complainant is able
to establish a prima facie case of discrimlnatory
reprisal, the burden shif t.s to the Agency to either
disprove the essential el-ements of the prima facie case
or establish a legitimate, non-discriminatory reason
for its action. The burden then shifts back to the
complainant to show t.hat such reason was pretextual .
McDonnell Dougras corp. v. Green, 4LL u.s. 192 (1973) .
An employer's challenged action constitutes an
adverse emproyment action if it "wou1d have been
material to a reasonable employea," and llkely would
have *dissuaded a reasonabl-e worker from making or
supporting a charge of discriminat LoTt. " Burli-ngton
Northern Santa Fe Railway co. v. white , 126 s . ct . 2405
(2006) (adopting the adverse action standard that had
been used by the Seventh and District of corumbia
Clrcuits and rej ecting ultimate employment decisions
approach) . See also washington v. rllinoi-s Department
of Revenue, 420 F.3d 558, 662 (7th Cir. 2005); Rochon
v. Gonzales, 438 F"3d 72t1, 7211-IZLB (D.C. Cir. 2006) .
See al-so Ray v. Henderson , 2l1 F. 3d L234 , 1243 (9th
cir. 2000) (employer conduct qualifies as retariation
in violation of Title vrr if it is "reasonably likely
to deter employees from engaglng in protected
23
act ivity" ) .
ln White, Sheila White was hired as a track maintenance laborer by Burlington
Northern Santa Fe Railroad. For the first three months of her employment, she was
assigned to operate a forklift, which is less physically demanding and cleaner than other
track work. After she filed a sexual harassment claim against her foreman, she was
removed from her forklift duties and assigned to more physically demanding and dirtier
hack maintenance work, and later she was suspended without pay (although later
reimbursed) for insubordination toward a supervisor. The Court, while emphasizing that the
analysis must be conducted on a case-by-case basis, decided that the new assignment
and the suspension without pay were materially adverse to White. ld. at2416-18.
Employment actions that could be materially adverse include lateral transfers,
unfavorable job references, changes in work schedules, and elimination of a flexible
start-time policy. Rav 217 F.3 d at 1243-44. These changes decrease an employee,s pay,
have a substantial impact on future employment and other negative consequences. ld.
Further examples of adverse employment actions include termination, issuance of an
undeserved negative performance review, and refusal to consider an employee for
promotion. See Brooks v. Citu of San Mateo , 229 F.3d 917 , g2B-29 (9th Cir. 2000).
C. Title Vll - HarassmenUHostile Work Environment
Title vrr makes it unlawfur for an employer to
harass an employee based on membership in a protected
class. 42 U.S.C. 52000e-2(a); Sanchez v. City of
Santa Ana , 936 E.2d LO21 , 1037 (9tn Cir. 1990 ) . To
establish a prima facie case of discriminatory
harassment, the complainant must, establish the
existence of a hostile work environment. Harris v.
24
Forklift Systems, Inc., 510 U. S . 11, 2l (1993) citinq
Meritor Savings Bank v. Vinson, 417 U.S. 5J, 67
(1986). An employer is 1iab1e under TitIe VII for
conduct giving rise to a hostile work environment if
the complainant proves ( 1 ) that he or she was subj ected
to verbal or physj-cal conduct of a harassing nature,
(2) that this conduct was unwelcome, and (3) that the
conduct was sufficiently severe or pervasive to alter
the conditions of the complaj-nant's employment and
create an abusive working environment. Kortan v.
!_g_f ifornia Voutir autLo , 211 F.3d 1104, 1109-1110
(9tn Cir . 2000) . In determining whether the challenged
conduct constitutes an actionable hostile work
environment, courts must consider "all the
circumstances, incl-uding the ' f requency of the
discriminatory conduct; its severity; whether it j-s
physically threatening or humiliating r or a mere
of f ensive utt,erance; and whether it unreasonably
interfere s
performance. t "
wi th an employee's work
Faragher v. City of Boca Raton , 524
U.S. 1'75, lBG (1998) quoting Harris, 510 U.S. at 23.
25
IV. ARGT'MENT
St MIIIARY .TUDGMENT IS NOT }IARRAI{TED SINCE THE COMPLAINA}IT CAIit
PROVTDE STGNTFICAT{T, PROBjA,TI\IE EVTDENCE SUPPORTTNG HrS CLArM OF
DTSCRTMINATTON OR IIARA,SSMENT BASED ON RACE, COLOR, GENDER OR
REPRISAL.
A. Complainant Has Estab].ished A Prima Facie Case OfDiscrimination On The Basis of Race, Color, Gender Or Reprisal..
To establish a prima faeie case of racial, color, gender or
reprisal--based discrimination, the complainant bears the initiat
burden of showing that (1) he or she is a member of a protected class;
(2) was subject. to an adverse employment action; and (3) similarly
situated employees outside complainant's protected class were treated
more favorably in like circumstances. Behar v. United States Postal
Service, EEOC Request No. 05940781 (June 2, 7995); Perryman v. Johnson,
698 F.2d 1138 (11th Cir. 7983) ; Lawson v. Secretary of the Treasury,
2002 EEOPUB LEXIS 2668 (April 20, 2002); see also Gomez v. Henderson,
Postmaster, U.S. Postal Service, 2002 U.S. App. LEXIS 5100 (March 22,
2002).
At the t j-me of the complaint, Complainant was a GS-5, Patient
Services Assistant in the Imaging/X-ray Department. IF, Tab B-1, p.
13 . He is a black (color ) Af r j-can American (race ) male (gender ) who
filed a prior EEO complaint against Nurse Manager Katherine Woo ( from
another department ) in 20A5 . IF, Tab B-1, pp. 10 , LL and Tab C-2 .
The Complainant filed a second EEO complaint on April, 14, 2009.
fn his complaint, Complainant alleged that because of his race
26
(Afri-can American) , color (BIack) , gender (Male) and in reprisal- for
prior EEO activity, he was placed on 4.5 hours of authorized absence
and temporarily detailed by Dr. El-Saden from the fmaging Department
to the Pri-mary and Ainbul-atory Care Department due to inappropriate
conduct. IF, Tab B-1, pp. 16, Ll .
Complainant indicated that Michael Clark (male, African American,
brown-s kinned, no EEO activity) and Herlinda Valdovinos ( female,
Hispanic, brownr ro EEO activity) were treated more favorably than
he by not being detailed or placed on administratj-ve leave. f F, Tab
B-1, pp. 19-22, ffidle) . Exhibit 3.
In regard to reprisal- based on prior EEO activj-ty, Complainant
alleges that management discriminated against him for filing a prior
EEO case on April 74, 2009. Lorenzo Gaines corroborated his allegation
that management retafiated against him after he fifed his EEO complaint
in Apri1, 2009.
B. Assuning Comp]-aiaant Has Estalrlished A Prina Facie Case OfDiscrimination, The Agency Has Not Provided tegitj-rlate,Non-Discriminatory Reasotls For Its Action Ihat Has Been Rebutted ByThe Complainant.
Assuming, arguendo, that the Complainant has made a pri',a. facie
showing, the Agency can stifl prevail for purposes of a motion made
pursuant to 29 C.E.R. 51614.109(g) , if it can show undisputed evidence
of a "legitimate, nondiscriminatory reason" for the Compfainant's
treatment. See Jackson v. Runyon, EEOC Appeal No. 01954859 (August
23, L996) .
In regard to Claim A, Event 1, Comp.Iainant avers that on June
8, 2009, he was detailed by Dr. Ef-Saden (RMO2) from the Imaging
Department to the Primary and Ambul-atory Care Department due to
27
inappropriate conduct. IF, Tab B-1, pp. L6, 7J .
As the agency states that the Complainant was detailed pending
completion of an investigation into allegations of inappropriate
conduct. Thus the detail was taken as a disciplinary action.
Chief of Employee /Labor Relat j-ons, Mary Moore, testif ied that
Complainant was detailed to Primary and Ambulatory Care because his
conduct in the work area had been escalating and was becoming
disruptive/ coupled with atlegations of a hostile work environment
by and against him.
Employment conduct qualifies as retaliation in violation of Title
VII if it is "reasonably likety to deter employees from engaging in
protective activity. Employment actions that could be materially
adverse i-nclude lateral transfers. Ray 2L1 E.3d at L243-1244. It should
be noted that Mr. Clark, who the Complainant al-leged that threatened
him with bodily harm was not detailed or placed on administrative
leave.
In regard to Claim A, Event 2, Complainant alleges that on June
5, 2009 , he was placed on authori zed absence for 4 . 5 hours by Dr .
El-Saden (RMO2), before he started his new detail on Monday June B,
2009 . IF, Tab B-1, p . 26 . Documentary evidence demonstrates that
Complainant was placed on authorized leave on June 5, 2009, pending
his detail on June B, 2009. IF, Tab C-1, p. 846. Authorized absence
meant that Complainant was in an of f -duty st.at.us, but was paid and
not charged any annual or sick leave during t.hat time. IE, Tab C-J ,
p. 846.
The undisputed facts and applicable case Iaw demonstrate that
28
the Agency had no legitimate, non-discriminatory reasons for its
actions . In t.he currenL case / adverse action was taken aqainst
Complainant by detailing him temporarily. The terms, conditions and
privileges of Complainant' s employment were affected by his
assignment to this position. As Mary Moore and Ms. Nishimoto t.estif ied
this detail was caused by allegati-ons that the Complainant caused
a hostile work environment and thus was moved against his will. Even
though the Complainant alleged that a co-worker, Mr. Clark threatened
him 3 times with serious bodily harm, no action was taken against
him. AIso the complainant had filed an EEO Complaint against
management on April L4, 2009. It is obvious that the actlon taken
against the Complainant was in retaliation for filing his EEO
complaint.
C. CompJ.ainant Has EstabJ.ished a Case of Hosti1e Work Enwironmenton the Basis of Race, Color , Gender or Reprisal..
To assert a cause of action for a hostile work environment,Complainant must present facts that actions by Ms. Nishimoto, Dr.EI-Saden, Mr. Jones or Ms. Moore constituted discriminatory conductthat was so severe or pervasive that it created a work environmentabusive to Complainant because of his race r color, gender or priorEEO activity. In determining whether such an environment existed,we must consider whether a reasonable person j-n the Complainant' s
circumstances would have found the alleged behavior to be hostileor abusive. To this endr we must look at the frequency of thediscriminatory conduct, its severity, whether it j-s physicallythreateni-ng or humiliating, and whether it unreasonably interferedwith Complainant's work performance. Converse v. Postmaster General,EEOC Appeal No.0191851 (July 2J, 2001). The Supreme Court has statedthat, "conduct that is not severe or pervasive enough to create an
obj ectively hostile work environment-an envi-ronment that a
reasonable person would find hostile or abusive-is beyond Title VII's
29
purview." Harris v. Eorklift Systems, Inc., 510 U.S. l1, 22 (1993) .
Thus, not all claims of harassment are actionable.In this respect, the record is shows evidence revealing that
members of management harassed and made disparaging remarks orcomments about Complainant's race r color, gender or protected priorEEO activity from 2005.
In reference to harassment CJ.aim B-1, Complainant alleges thatin February 2008 , Michael Clark, MRI Technologi-st, made a bet withanother employee that he could get rid of Complainant, and threatenedhim by saying he should take him outside and "whoop his ass." IF,Tab B-1, pp. 29, 30. Complainant alleged that he reported this toRandy Jones and Chief Tech for the Department ) , and that Mr. Jones
spoke to both he and Mr. CIark separatefy and together, but decidedto weigh the matter out and see what happens. f F, Tab B-1, p. 32,
Gaines, testif ied that Cl-ark told him that he did threaten theComplai-nant. Gaines also told him that Clark had threatened him witha gun and that he would physically harm him.
With respect to C1aim B-2, Complainant alleges that from
February 3 , 2008 June l, 2008 , he could not. take daily lunch breaksbecause Ms. Nishimoto allowed co-worker Bertha Villanueva to be outof the office for up to four hours each day. IE, Tab B-1, p, 33.
Gaines testified that he would see Villanueva away from theirwork area in other parts of the hospital and would be away for longperiods of time away from their work station.
With regard to CLaim B-3, Complainant alleges that from February
2008 to June 2008, Ms. Nishlmoto denied his request for a change
in his tour of duty. IF, Tab B-1, p. 31. He noted that no one elserequested a change in their tour of duty. IF, Tab B-1, p. 39. Ms.
In reference to CJ.aim B-4, Complainant alleges that from
February 2008 to June 2008, Ms. Nishimoto denied his request to work
overtime and offered him compensatory time in lieu of overtime.IF, Tab B-1, p. 40. The documentary record backs his allegationsup, as he was only gj-ven 4.15 hours of overtime.
30
Documentary evidence on file indicates that Complainant accrued3.75 overtime hours on February 26,2008 and one overtime hour onJune L1 , 2008 . IF, Tab C-16, pp. 3, 4 . Documentary evidence alsoreveal-s that Complainant took/ earned 32 hours of compensatory timefrom Eebruary 21, 2008, to Jury 7J, 2008. rF, Tab c-16, p. 1.
In regard to Claim B-5, Complainant alleges that af ter inqui-ringabout a "lead" position j-n the service, on May 5, 2OOB, Ms. Nishimototold him that he should seek reassignment to another service, thathe would find more opportunities in private industry, and later senthim emails about other lob training. IF, Tab B-1, p. 42. Complainantal-leges that Ms. Nishimoto said the same thing about seeking upwardmobility in other services to another employee named HerlindaValdovinos (Race: Hispanic. Color: Brown, Gender: Female, EEO
status: No prior EEo activity) . rE, Tab B-1, p. 42. complainantexplained that Ms. Nishimoto sent him emails to the effect thatbecause the service had not yet been gj-ven permission to hire a Iead,it might be j-n his best interest to gather experience in differentservices or agencies. IF, Tab B-1, p. 43. Complainant stated thatMs. Nishimoto told him not to limit his possibilities and explainedthat certain agencies have better upward mobility programs than theVA. fF, Tab B-1, p . 43.
Gaines stated that he heard Nishimoto make this statement tothe Complainant and thought it strange, as the idea was to improveoneself for promotion at the VA and not somewhere else. The recordis clear that. Nishimoto denied the Complainant's request to attendtraining classes, but atlowed Valdovinos to attend timecard trainingsoon after she arrived in the unit. IF B-2, p. 51.
fn regard to ClaimB-6, Complainant alleges that on May 5, 20OB,
Ms. Nishimoto denied his request to leave 15 mj-nutes early in lieuof having missed his break, and then subjected him to sarcasticremarks. IF, Tab B-1r p . 44.
In regard to Claim B-7, Complainant atleges that all-eges thaton May 6, 20OB, Ms. Nishimoto harassed him by sending an email messagenotifying him of a meeting scheduled the following day. IF, TabB-1, P. 48. Complainant confirmed that the foregoing email was also
31
sent to other employees/ Lorenzo Gaines and Bertha ViIlanueva. IF,Tab B-l-, p. 48.
Gaines explained that the employees are now given notice ofa meeting "a month in advance" but tn 2008, "everybody was scramblingtrying to get the MRI scheduled; so it could have been a day notice,it could have been a couple of days not i-ce . " f F, Tab B-2, pp . 25 ,
26.
Ms. Ni-shimoto indicated that she has to send all of her staf fe-mails because she works in a different building. She noted thatshe sent Compl-ainant an e-mail on May 5tn, 2OOB, saying she "wouldbe in (his) building May 10th Lo discuss some issues" and that he
actually answered her on that same day. rF, Tab B-8, pp. 28-30.In regard to Claim B-8, Complainant alteges that in May 2008,
Ms. Nishimoto pulled him out of a timekeeper training cl-ass thatshe had previously approved him to attend. TE, Tab B-1, pp. 50,
51 . Complainant clarif ied t,hat on May !2 , 2008 , Ms . Nishimoto had
approved him to attend a class on June L6, 2008 , but later retractedthe approval. IF, Tab B-1, p. 51.
As stated above, Nishimoto denied the Complainant timekeepertraining and granted it to his co-worker soon after she transferredinto the uni-t.
In regard to Claim B-9, Complaj-nant alleges that on December
6, 2008, Ms. Nishimoto totd him "if you want to get anywhere in theVA you have to kiss my ass." fF, Tab B-1, p. 53.
Ms. Nishimoto (RMO1) testified that she "never" made this orany simil-ar comment to complainant,. rF, Tab B-8, pp. 31, 32.
Gaines testified that the Complainant tol-d him that Nishimoto made
this comment to him. IF, Tab B-2, pp. 21.
ln reference to Claim B-10, Complainant alleges that on January 9,2009, Ms.
Nishimoto failed to take any action when Complainant reported that Michael Clark
threatened him, saying that he had a gun in his car and wanted to go outside so he
could shoot him. lF, Tab B-1, p. 54. Complainant explained that as soon as he
alerted Ms. Nishimoto to Mr. Clark's threat, she wrote an immediate email asking Randy
Jones and Barbara Biddle to discuss this incident with their technicians, and stating that
"the schedulers are doing what we ask them to do." lF, Tab B-1, p. 55 and Tab C-10.
32
Complainant claimed that Ms. Nishimoto treated Mr. Clark more fairly because
"he's been there for almost 30 something years, so I think she shows him that respect
because he's been there a long time." lF, Tab B-1, p.57.
Gaines testified that Clark stated he did threaten the Complainant. He further
testified as a former VA police officer that Clark should have been sent to another unit
away from the Complainant or but on administrative leave and an investigation conduct.
Management took neither of these actions. IF, Tab B-2, pp. 28.
The agency has a zero tolerance policy regarding threats of physical harm to
employees, yet the Complainant testified that Clark made three threat against him and
management did nothing about it. Yet, he was detailed when a female co-worker
complained about him creating an alleged hostile work environment.
ln regard to Claim B-l l,Complainant alleges that in January 2009, Ms.
Nishimoto denied his request to attend Planetree training. lF, Tab B-1, p. 58.
Complainant noted that it was actually Ms. Nishimoto's idea that he volunteer for
Planetree training. lF, Tab B-1 . p. 58. Complainant was not aware that anyone else
(beside Mr. Gaines and himself) applied for the training and was not aware that anyone
actually attended the training. lF, B-1, p. 59. lt is undeniable that he was not allowed
to attend either this or any other training session he requested and Valdovinos was.
Gaines stated that Ms. Nishimoto denied both him and Complainant attendance
at the Planetree training "because of the coverage over in the main hospital as far as
scheduling. That training would have taken us away from approximately a week." lF,
Tab B-2, pp. 31, 32. Gaines did not think that he and Complainant were denied
Planetree training on the basis of race, color, or gender. lF, Tab B-2, pp. 31, 32,
Valdovinos testified that she requested to attend the Planetree Trainthe-Trainer
training and "on one occasion we scheduled it at the same time (and) date, so I moved
my date to accommodate (Complainant). I haven't even attended the training (to) this
day because every time I schedule something, something comes up where I have to
either cover someone or I have something to do." lF, Tab B-3, pp. 19,20.
In regard to Claim B-12, Complainant alleges that in January 2009, Ms.
Nishimoto denied his request to attend Systems Redesign training. lF, Tab B-1, p. 59.
Complainant noted that it was actually Ms. Nishimoto's idea that he volunteer for
Systems Redesign training, but that on January 30,2008, she stated that she was
going to hold off on appointing any coaches. IF, Tab B-1. pp. 59, 60. Complainant
33
did not submit to Ms. Nishimoto an lndividual Development Plan (lDP) as she had
recommended because he had submitted one a month before. lF, Tab B-1 , p. 60.
Nishimoto always had an excuse to explain her constant denial of training to the
Complainant, yet she approved training for Valdovinos. She claimed she encouraged
the Complainant to take courses to enhance his changes for promotion, yet constantly
denied his requests for trumped reasons.
ln reference to Claim B-13, Complainant alleges that on February 9,2009, Ms.
Nishimoto failed to take any action when Complainant reported that Mr. Clark again
threatened him. lF, Tab B-1, p. 54. Complainant indicated that when he reported it to
Ms. Nishimoto, she referred it to Randy Jones, who is the direct supervisor of Mr. Clark.
lF Tab B-1 , p. 62.
Gaines stated that Clark told him that he did say to the Complainant that he did
have a gun out in the car and that he was going to take them out and actually shoot
him. lF, Tab B-2, pp. 28.
ln reference to Claim B-14, Complainant alleges that on March 24, 2009, Dr.
El-Saden made a derogatory statement about "techs" becoming a little hostile, which
Complainant believes was directed at him.
Gaines stated that El-Seden did state that "techs" were becoming hostile and
that Herlinda Valdovinos was a "fresh face" he too that to mean that women can do a
better job then men. lF, Tab B-2, p. 35,36. Gaines believe Complainant was subjected
to a hostile work environment on the basis of his gender because El-Seden stated that
a woman could do the job better. IF, Tab B-2, p. 36.
ln regard to Glaim B-15, Complainant alleges that on April 6, 2009, Ms.
Nishimoto berated him and co-worker Lorenzo Gaines for not providing coverage for
the front desk. lF, Tab B-1, pp. 65,66. Complainant stated that Ms. Nishimoto had
spoken to Herlinda Valdovinos and Lorenzo Gaines in the same manner about the
same issue. lF, Tab B-1, p. 67.
Gaines testified that the impression he had of the conversation was that "as
long as I let the techs know that we were leaving the front desk to go to lunch and they
were willing to cover, then that would be okay, and when we tried to explain it to Ms.
Nishimoto, she said that it was no longer the way." lF, Tab B-2, p. 37. Gaines noted
that Ms. Nishimoto told Complainant and him to "take our lunch breaks separately, as
long as the front desk was covered." !F, Tab B-2, p.37.
34
ln regard to Claim 8-16, Complainant alleges that on April 16, 2009, he
overheard Ms. Nishimoto say to Ms. Valdovinos that she should not tell him that she
was going to timekeeper class, and she allegedly stated "you know how he is," lF, Tab
B-1 , p. 67. Complainant stated that he did not say anything to Ms. Nishimoto or Ms.
Valdovinos about what he allegedly overheard. IF, Tab B-1 , p.68. Valdovinos did
attend the timekeeper class, the Complainant was not allowed to attend.
Ms. Nishimoto testified that Ms. Valdovinos attended Timekeeper training in
"June or July or August". lF, Tab B-8, p. 43.
ln regard to Glaim B-17, Complainant alleges that on April 21 ,2009, Ms.
Nishimoto berated him about his hostile work environment and stated "! need to talk to
you about your little situation, it would be in your best interests," which he perceived as
a threat. lF, Tab B-1, pp. 68, 69. Complainant stated that Ms. Nishimoto actually came
to his desk and asked him to come sit and talk about his situation because she did not
want him to have a hostile work environment. lF, Tab B-1 , p. 69.
ln reference to Claim B-18, Complainant alleges that on April 27,2009, Dr.
El-Saden held a staff meeting in which she singled him out and blamed him for the
clinic's failure and problems, including saying he had made the clinic inaccessible and
that he should let Herlinda Valdovinos "do what she was brought over to do." IF, Tab
B-1, p. 70.
Gaines testified that he was in this meeting but could not recall what was said,
but it was possible that she did say it. lF, Tab B-2, pp. 39.
ln regard to Glaim B-19, Complainant alleges that on May 7,2009, Mr. CIark
again threatened him, and although he reported it, to date management has not taken
any action. lF, Tab B-1 , p.73.
Gaines testified that like "with all the threats Mr. Clark hasn't been removed from
the work space, and I haven't seen anyone do anything about it. So it does seem like
management has taken no action. lF, Tab B-2, pp. 39.
ln reference to Claim B-20, Complainant alleges that on May 8, 2009, Dr.
El-Saden called him to inform him that she had a solution to their problem, which was to
move him to a closet in Bldg. 500 away from everyone else. She allegedly told him that
if this did not work, she would put him in the area with PAX, as she did not know what
else to do, and that it was easier to get rid of a scheduler than lose a tech. lF, Tab
B-1. p.77.No such action was taken by management to move Clark.
35
El-Saden stated that Complainant first agreed to move and she called right away
to get a phone put in "then he called me back and said, 'l don't want to move. I think
Michael should be the one to move.' I said, 'Well, l'm most worried about your welfare
right now and I only have one place to put a technologist, and until I can look into this
why don't we move you out of there so I can get you away from him.' I only have two
magnets, and Michael Was most familiar with the magnet he was working at out in 507,
(and) 'if I bring you up here, all I need is a phone and a fax machine.' He called me
back again and said,'No, I don't want to move. I didn't do anything wrong.' I said,
'but aren't you scared?' and he goes, 'Well, yes (but) l'm going to stay here. I think
Michael should move."' lF, Tab B-9, pp. 35, 36. Management never took the threats of
Clark seriously, contrary to its own regulations regarding threats in the work place.
Gaines testified that all the techs performed the same duties. lF B-2, p. 41 .
ln reference to Claim B-21, Complainant atleges that on May 11, 2009, Dr.
El-Saden berated him about his lunch schedule and not providing coverage. lF, Tab
B-1, p. 80.
Gaines explained that when he and Complainant came back from lunch, Dr.
El-Saden "was working the desk (and) asked how come the desk wasn't covered. I
actually explained to her (that) I was under the impression as long as we let the
technician know that we were leaving the front to get a bite to eat, it was okay. We
had done that on several occasions when Mr. Clark has said,'Okay guys, go ahead,'
(and) on a couple of occasions he has actually asked us to bring some food back. She
said, 'Okay, if that's the way you guys have it over here, that's fine. tjust want to make
sure one way orthe other, the desk is covered."' !F, Tab B-2, pp.41-43.
ln regard to Glaim B-22, Complainant alleges that on May 13, 2009, after he
suggested that he rotate clinic duties, Ms. Valdovinos said "l won't work here. l'm not a
slave, and you don't tell me what to do." And then Ms. Nishimoto said that she was in
agreement with him; however, because Ms. Valdovinos objected that they should
modify the rotation. lF, Tab B-1, pp. 82, 83.
Gaines said that he didn't have a problem with rotating clinic duties, but
Valdovinos did. lF, Tab B-1, pp 44.
ln reference to Claim B-23, Complainant alleges that on May 28, 2009, he
became aware that management had decided to modify their previous agreement to
move two desks up front and alternate duties between him and Ms. Valdovinos. IF,
36
B-1, pp. 84, 85.
Gaines claimed management "originally wanted to move a desk up front for avolunteer, and the volunteer never showed up, and they had another volunteer come in
twice a week. When that person stopped showing up, that's when they wanted tomove Ms. Valdovinos up front with Mr. Mitchell (and) they actuatly put a smaller desk
adjacent to the printer but she never moved up front." lF, Tab B-2, pp.44,45. Gaines
believed Complainant was treated differently or subjected to a hostile work environment
on the basis of gender and due to his "letting everyone know that he was getting ready
to go to the EEO, it seemed like they started treating him with a little bit more hostile
attitude. lF, Tab B-2, pp. 46.
ln regard to Claim B-24, Complainant alleges that on May 26,200g, he became
aware that Ms. Nishimoto had not been truthful about receiving permission from the
union to rotate his duties. lF, Tab B-1, p. 88.
In reference to Glaim B-25, Complainant alleges that on May 28, 2009, he
overheard Ms. Nishimoto tell Lorenzo Gaines that he should take a detour from
Complainant, not get stereotyped with him, and that "he has his own skeletons in the
past, if you know what I mean." She cautioned Mr. Gaines to think about his kids and
told him that as a result of Complainant being EEO driven, she had asked Human
Resources to prepare a request to rotate him. lF, Tab B-1 , p. 88.
Gaines stated that Nishimoto did make these statements to him. tF, Tab B-2, pp.
48.
ln regard to Claim B,-26, Complainant alleges that on May 28, 2OOg, when she
gave Complainant his mid-year review, Ms. Nishimoto stated "You should take the
Medical Coder class offered at the VA because outside hospitals are paying big bucks
for coders." lF, Tab B-1 , p. 91. Complainant indicated that Ms. Nishimoto made the
same comment to Valdovinos. lF, Tab B-1, p. 91.
Gaines testified that Nishimoto made the comment directly to the Complainant
and not him, and has not made similar statements to him. He further thought it strange
that she would mention outside employment when they usually promote growth within
the VA. lF, Tab B-2, pp. 52.
ln reference to Claim B-27, Complainant alleges that on June 4, 2009, Dr.
El-Saden berated him about an overbooked research patient. IF, Tab B-1, p.92.
Every time Valdovinos made a complaint about the Complainant, management
37
(Nishimoto and El-Seden always could not look into the alleged problem too soon.
Ms. Moore (RMO4) testified that "this is the issue where Mr. Mitchell did
overbook some patients and El-Saden) was going to conduct a Fact-Finding." lF, Tab
B-10, pp. 44, 45.
ln regard to Claim B-28, Complainant alleges that on June 5, 2009, Dr.
El-Saden denied his request for a union rep present before she proceeded with the
meeting. lF. Tab B-1, p. 95.
Management claimed the detail was not disciplinary yet Ms. Moore stated that
Complainant's detail pending a Fact-Finding investigation and was done so because he
was accused of creating a hostile work environment.
Ms. Moore believed Complainant "was, in fact, subjecting others to hostile
behavior. Whether or not it rose to a hostile work environment, I couldn't say (but) I
believe that Mr. Mitchel!'s conduct towards others was hostile." lF, Tab B-10, pp. 18 -19.
Management stated it's been the practice here to separate the employees that
are involved or subject to the allegation (of a hostile work environment. Allegations
against Mr. Mitchell were treated with great gravity, yet the threats against the
Complainant of serious bodily harm be Clark were treated as a disagreement between
co-workers and not treated in the same fashion as the allegations made by the
Com p lai nant's co-workers
Harassment must be more than common workplace events, frictions, or incidents
that merely result in hurt feelings. "Harassment, as the term is used in Title Vll cases,
refers to more than being bothered or subjected to stress." Cruz. V Dept. of Defense,
EEOC Appeal No. 01951912 (August 2, 1996).
The Complainant was subjected to a long and continuing hostile work
environment by management. He testified that Nishimoto told him that if he wanted to
get ahead in the VA, you have to kiss my ass. Gaines stated that Mitchell told him what
Nishimoto said to him and that he was upset. lF, Tab B-2,pp.27.
The Complainant and Gaines testified that they believed that he was the victim
of gender discrimination and retaliation for filing an EEO Complaint in April, 2009. The
Complainant and Gaines believed that the statements about Valdovinos being a "fresh
face" were indicative of discriminatory animus based on gender. The threats against the
Complainant by Clark were treated as if they were trivial and of no consequence. Yet
38
any allegations by female co-workers of the Complainant were treated with greater
gravity and weight.
This was no mere dysfunctional workplace but a concerted effort by
management to treat the Complainant in an illegal manner to justify a finding of a
hostile work environment by harassment in terms of the Harris standard. See Ford v.
Secretarv, Department of the Armv, EEOC Appeal No. 01960932 (December 6, 2001).
There is atso sufficient evidence to justify a finding of retaliation based on filing
of a prior EEO complaint.
Based on the foregoing testimonia! evidence, it is undisputable that Complainant
has met his burden of showing that he was subjected to hostile work environment
harassment based upon his race, color, gender or prior EEO activity, that it affected a
term or condition of employment, and/or had the purpose or effect of unreasonably
interfering with his work environment and/or creating an intimidating, hostile, or
offensive work environment.
V. CONCLUSION
Based on the undisputed facts and law, the evidence, when viewed in the light
most favorable to Complainant, does support a finding of discrimination or harassment
based on race, color, gender or reprisal. Accordingly, the Complainant requests that the
Administrative Judge reject the Agency's motion and great the Complainant a hearing
on his complaint.
Dated: June 5,2010
Respectfu lly Subm itted,
Andrew SchwartzAttorney for Complainant
39